COMMONWEALTH v. ALEXANDER COLE (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of resisting arrest, pursuant to G. L. c. 268, § 32B. On appeal, he claims that there was insufficient evidence to support his conviction; that, prior to trial, a motion judge abused her discretion in allowing the Commonwealth to introduce evidence that the defendant had a warrant for his arrest; and that the trial judge abused her discretion in excluding a computer-aided dispatch (CAD) report.¹ We affirm.

1. Sufficiency of the evidence. The defendant claims that there was insufficient evidence that (1) he knew that an officer was attempting to arrest him; and (2) that he attempted to prevent his arrest by using force against a police officer or other means that created a substantial risk of bodily injury to an officer. We disagree.

In determining whether the evidence was sufficient to sustain the defendant's conviction, we consider the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth. See Commonwealth v. Rakes, 478 Mass. 22, 32 (2017). In this analysis, this court “is not required to ‘ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt’ ” (citation omitted). Commonwealth v. Rocheteau, 74 Mass. App. Ct. 17, 19 (2009). “Nor are we obligated to ‘reread the record from a [defendant]’s perspective.’ ” Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 152 (2008), quoting Palmariello v. Superintendent of M.C.I. Norfolk, 873 F.2d 491, 493 (1st Cir.), cert. denied, 493 U.S. 865 (1989). “Rather, the relevant ‘question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ ” (citation omitted). Rocheteau, supra. In such review, we will not disturb credibility determinations of the fact finder. See Palmer v. Murphy, 42 Mass. App. Ct. 334, 343 (1997) (“Credibility determinations, of course, lie exclusively within the province of the fact finder -- here the [jury] -- who is free to believe one witness and disbelieve another”).

a. Whether the defendant understood he was being arrested. “An arrest is effected when there is (1) ‘an actual or constructive seizure or detention of the person, [2] performed with the intent to effect an arrest and [3] so understood by the person detained.’ ” Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008), quoting Commonwealth v. Grandison, 433 Mass. 135, 145 (2001). “The standard for determining whether a defendant understood that he was being arrested is objective -whether a reasonable person in the defendant's circumstances would have so understood” (citation omitted). Commonwealth v. Joyce, 84 Mass. App. Ct. 574, 581 (2013).

Here, taking the evidence in the light most favorable to the Commonwealth, a rational trier of fact could have found the following. At around 4 P.M. on November 3, 2019, Quincy Police Officer Robert Kelly was dispatched to a building to investigate a report concerning damage to an elevator. When Officer Kelly arrived, he went to the roof of the building and found that the defendant was trapped in the elevator shaft and needed assistance. Officer Kelly, who was in full uniform, told the defendant that he was a police officer. Officer Kelly attempted to communicate with the defendant, who was acting irrationally and was yelling “pretty incoherently.” Other officers and Quincy firefighters soon joined and together successfully extracted the defendant. At some point prior to the defendant's extraction, Officer Kelly learned the defendant's identity and that he (the defendant) had an active warrant for his arrest.

Once the defendant had been extracted from the shaft, Officer Kelly determined to place the defendant in handcuffs not only because of the warrant for his arrest, but also for the safety of the defendant and those interacting with him. Officer Kelly believed he “would have told [the defendant] that he was under arrest, [and to] put his hands behind his back.” That the defendant understood that the officers intended to arrest him could reasonably be inferred from his reaction: he lay “on the floor, stomach down, chest down on the hard floor, putting his arms underneath his chest,” so as to prevent the officers from placing him in handcuffs. Contrast Commonwealth v. Quintos Q., 457 Mass. 107, 110-111 (2010) (reasonable person would not have understood they were being arrested where officers did not communicate intent to arrest passenger of vehicle who was innocent of any crime).

While the defendant was on the ground, Officer Kelly and two other officers attempted to handcuff him. As they did so, the defendant flailed his arms, moved his body up and down, and kicked his legs. Eventually, the officers were able to free the defendant's arms from beneath his chest and place them in handcuffs. Based on the entirety of this sequence, a rational trier of fact could have found that a reasonable person in the defendant's position would have understood that he was being arrested. See Commonwealth v. Soun, 82 Mass. App. Ct. 32, 37 (2012) (reasonable person in defendant's position would have understood that officers intended to arrest defendant's son when officers entered apartment and told son, who was moving aggressively and swearing at officers, to turn around and place his hands behind his back).

b. Use of physical force or creating substantial risk of causing bodily injury. General Laws c. 268, § 32B (a), prohibits two means of resisting arrest: “(1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.” G. L. c. 268, § 32B (a). The crime “is committed, if at all, at the time of the effecting of an arrest” (quotation omitted). Grandison, 433 Mass. at 145.

As discussed infra, upon learning that the officers intended to place him under arrest, the defendant laid his chest down on the ground and placed his arms underneath his body. As the officers attempted to free the defendant's arms to place him in handcuffs, the defendant moved his body up and down, kicked his legs, and flailed his arms. A rational trier of fact could have concluded from this evidence that the defendant's actions created a substantial risk of bodily injury to the officers. See Grandison, 433 Mass. at 144-145 (rational finder of fact could have concluded that defendant created substantial risk of causing bodily injury to officers where he would not bend his arm to be placed in handcuffs, pulled arm away for few seconds, and it took four officers to handcuff him; such resistance could have caused officers to be struck or otherwise injured); Commonwealth v. Maylott, 65 Mass. App. Ct. 466, 467-470 (2006) (defendant's “flailing” and stiffening of arms as police attempted to handcuff him, yelling at officers, and resistance to being told to place hands behind back was sufficient evidence that defendant created substantial risk of causing bodily injury).

2. Evidentiary rulings. The defendant further claims that the motion judge abused her discretion in permitting the Commonwealth to introduce evidence that the defendant had an outstanding arrest warrant, and also that the trial judge abused her discretion in excluding a CAD report. We disagree.

We review a judge's decision to admit or exclude evidence for an abuse of discretion. See Simmons v. Chace, 105 Mass. App. Ct. 550, 555 (2025). “[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives” (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

a. Outstanding arrest warrant. Prior to trial, the Commonwealth filed a motion in limine to admit, and the defendant filed a motion in limine to exclude, evidence that the defendant had three outstanding warrants at the time of his arrest. After a hearing, the motion judge ruled that the Commonwealth would be permitted to “elicit evidence or testimony of a warrant, and that [it] was the basis [for the defendant's arrest],” but prohibited the Commonwealth from eliciting that the defendant had three outstanding arrest warrants.

“In proving the crime of resisting arrest, the Commonwealth was required to establish that the officers were trying to effect an arrest of the defendant.” Grant, 71 Mass. App. Ct. at 210. Additionally, the Commonwealth was required to establish that the officer was “acting under color of his official authority.” G. L. c. 268, § 32B (a). That the defendant had an outstanding warrant was “highly relevant to [those] element[s] of proof.” Grant, supra at 210-211. Accordingly, the motion judge properly acted within her discretion in allowing the prosecutor's motion and denying the defendant's.

The motion judge also mitigated against unfair prejudice by prohibiting the prosecutor from eliciting that the defendant had three outstanding warrants. Rather, she ruled that the prosecutor could only elicit that the defendant was “arrested on a warrant.” Consistent with that instruction, the jury heard, simply, that the defendant had an outstanding warrant. None of the details regarding the basis of the warrant were elicited. Although the trial judge did not give a limiting instruction, the defendant did not request one and the judge was not required to give one sua sponte. See Commonwealth v. Leonardi, 413 Mass. 757, 764 (1992) (“the law does not require a judge to give limiting jury instructions regarding the purpose for which evidence is offered unless so requested by the defendant”). There was no abuse of discretion.

b. CAD report. The defendant also claims that the CAD report should have been admitted in evidence to impeach Officer Kelly, and separately as a business record. We disagree.

The sidebar conference at trial regarding the proffered introduction of the CAD report was “[i]ndiscernable.” In attempting to reconstruct the record, defense counsel could not recall the precise reasons why she sought to introduce the CAD report (i.e., possibly a “non-hearsay purpose or as a business record”) and the prosecutor could not recall his precise objections to the report (i.e., possibly on grounds of “authentication, hearsay and that counsel was inappropriately attempting to have the witness testify from a document he did not create”). In response to the parties’ joint motion that the judge “settle the dispute by ruling on the contents of the arguments made at sidebar,” the judge ruled that she did not have a full and precise recollection of the parties’ arguments or her rulings at sidebar but recalled excluding the record on authentication grounds.

On this limited record, the judge's determination that the CAD report was not adequately authenticated was within the bounds of her discretion given Officer Kelly's equivocal answers as to whether the CAD report was a true and accurate copy of the report for this incident. See Commonwealth v. Wheeler, 42 Mass. App. Ct. 933, 935 (1997) (judge did not abuse discretion in concluding that witness did not authenticate recording where witness was unable to testify to recording's substance).² There was no abuse of discretion.

Judgment affirmed.

FOOTNOTES

1.   The trial judge was not the motion judge.

2.   At oral argument, the defendant argued that the Commonwealth's production of the CAD report in discovery was sufficient to authenticate it. However, the defendant's appellate brief makes only a passing reference to the fact that the CAD report was produced in discovery. We decline to consider this argument where it was not developed until oral argument. See Commonwealth v. Richardson, 479 Mass. 344, 357 n.17 (2018); Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).